Volume. 8 Issue. 10 – March 13, 2024

This week we consider the Tribunal’s reasonings with respect to the validity or lack thereof regarding denial notices relied upon by the Respondent. In addition, pain relief is the key consideration with respect to the reasonableness of three treatment plans. Of further note, the Tribunal relies extensively upon its own jurisprudence in coming to the various conclusions.

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Denials Deficient and Pain Relief Validates Treatment Plans

Deficient Notices Invalidate Denials – Injured in a January 2017 MVA, the Applicant Nwaogwugwu sought entitlement to two treatment plans for physiotherapy and one for an orthopaedic assessment. However Aviva, in 21-013593 v Aviva, raised a preliminary issue with respect to two of the disputed items, claiming that Nwaogwugwu is statute barred from proceeding with her claim for these benefits because she failed to file her application within the 2 year limitation period. Ultimately the Tribunal found that Nwaogwugwu was not statute barred, and was further entitled to all three of the issues in dispute.

Procedurally

With respect to the preliminary issues, the Tribunal “agreed with the applicant that the limitation periods for both treatment plans were not triggered by the respondent’s letters dated September 4, 2019 and November 1, 2019 as those letters do not constitute clear and unequivocal notices.” Nwaogwugwu relied on Nadine Robinson v. Aviva (22-006390) wherein the threshold for a valid denial was set out:

“In order for the provision under section 56 to be triggered, I must determine whether the respondent’s notice of denial was proper in accordance with the principles set out in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial… Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person. This means the notice at the very least should explain what the insured person’s medical conditions are…”

Robinson further referenced the finding in Divisional Court in Hedley v. Aviva that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute no reasons at all. Reasons must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination.

For the within matter, the denial notice for the $1549.68 treatment plan set out the following “medical reason”:

As per the Insurers examination report dated Aug 17, 2017 completed by Dr. Naiman it was indicated that “the claimant does not currently have an impairment as a result of the motor vehicle accident.” As no compelling evidence has been submitted to suggest further physical treatment is required, we are requesting an insurers examination.

In addition, the denial relied upon for the $2516 orthopaedic assessment “was even more minimalist and generic”, simply indicating that “The type(s) of treatment does not appear consistent with the patient’s diagnosis.” The Tribunal further reasoned that Aviva’s “boilerplate denial letters were also ambiguous with respect to the date when the two year limitation starts. Similarly, the denial letters do not comply with the requirements in Smith, as they also fail to state the reasons, medical or otherwise, for the denial. The respondent therefore failed to comply with the requirements under subsection 38(8) of the Schedule by failing to provide adequate medical reasons to deny the disputed OCF-18s. Pursuant to the analysis in Robinson, these letters do not represent valid denial notices and therefore did not trigger limitation period in section 56 of the Schedule.”

Finding that Aviva did not provide the necessary information with respect to its denials until it issued its Explanation of Benefits (‘EOB’) on December 12, 2019, the two year limitation period only began to run from this date, and therefore the Nwaogwugwu’s claims fell within the two year period. Therefore Nwaogwugwu was not barred by section 56 of the Schedule from proceeding with her claim with respect to the two treatment plans.

Substantive

The Tribunal then went on to address from a substantive perspective the two plans for physiotherapy, finding both to be reasonable and necessary. Aviva’s IE assessor, who opined that Nwaogwugwu had reached maximum medical recovery, did confirm the existence of residual symptomatology. Both of the disputed plans indicated pain relief as a goal. Nwaogwugwu relied on G.R. and Aviva (17-001146):

I must consider the necessity of the Treatment Plan’s cost by looking at all of the circumstances… The applicant knows his body, and he knows what reduces his pain. He has chosen to receive facility based physiotherapy treatment. I appreciate that the effect of physiotherapy can have diminishing returns: the applicant’s pain reduction may not be as marked as in the past. I am satisfied that pain reduction, even on a lesser scale, is a necessary goal.

With Nwaogwugwu having confirmed to the psychological IE that therapy was beneficial, and the earlier IE assessor confirming ongoing symptoms, both physio plans were reasonable and necessary in light of their objectives of pain reduction and a return to full functionality.

As for the orthopaedic assessment, Aviva’s assessor had opined that “there was no objective evidence of accident related orthopaedic, musculoskeletal or neurological impairment and that an orthopaedic assessment was therefore not reasonable and necessary.” However, as he did acknowledge ongoing pain, “I agree with the applicant that an orthopaedic assessment to determine the possible cause of this symptomology represents a valid objective.”

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